1 1 IN THE CIRCUIT COURT IN AND FOR WALTON COUNTY, 2 FLORIDA 3 JOHN P. CARROLL, 4 Plaintiff, 5 v. Case No. 09CA002021 6 WATERSOUND BEACH COMMUNITY ASSOCIATION, INC., a Florida Corporation; WATERCOLOR 7 COMMUNITY ASSOCIATION, INC.; a Florida Corporation; DAVID LILIENTHAL, individually 8 an as Director; MARY JOULE; SANDRA MATTESON; RONALD VOELKER; JOHN DOE; 9 and OTHER UNKNOWN CONSPIRATORS, Defendants. 10 _____________________________________________________ 11 DEPOSITION OF 12 GARY A. SHIPMAN 13 August 23, 2011 14 _____________________________________________________ 15 The Deposition of GARY A. SHIPMAN was taken on 16 behalf of the Plaintiff, at the office of Dunlap & 17 Shipman, located at 1414 County Highway 283 South, 18 Suite B, Santa Rosa Beach, Florida, and reported by 19 Kathryn B. Peacock, Court Reporter and Notary 20 Public, commencing at approximately 9:00 a.m. and 21 being concluded on the same day. 22 _____________________________________________________ KATHRYN B. PEACOCK 23 Court Reporter 1009 Ridgewood Cove, S. 24 Niceville, Florida 32578 (850)897-2864 25 KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

2 1 APPEARANCES 2 JOHN P. CARROLL, PRO SE 3 P. O. Box 613524 WaterSound, FL 32461 4 PLAINTIFF 5 CHRISTOPHER L. GEORGE, ESQUIRE 6 Attorney at Law P. O. Box 1034 7 Mobile, AL 36633 ATTORNEY FOR DEFENDANTS 8 9 10 INDEX 11 WITNESS PAGE NO. 12 GARY A. SHIPMAN 13 DIRECT EXAMINATION BY MR. CARROLL 3 14 CERTIFICATE OF OATH 58 15 REPORTER'S DEPOSITION CERTIFICATE 59 16 17 18 19 20 21 22 23 24 25 KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

3 1 GARY A. SHIPMAN, 2 a witness, after having first been duly 3 sworn to tell the truth, the whole truth, and 4 nothing but the truth, was examined and testified, 5 to-wit: 6 DIRECT EXAMINATION 7 BY MR. CARROLL: 8 Q Well, Mr. Shipman, you started out by 9 handing me some documents. Are these all of the 10 documents responsive to my duces tecum request? 11 A They're all the documents that are -- that 12 I have in my possession that are not either subject 13 to attorney/client privilege or no longer pertain to 14 any of the remaining counts. 15 Q Do you have documents that you object to 16 production because of the attorney/client privilege? 17 A Absolutely. 18 Q Can you tell me what those documents are? 19 A Communications between me and the client 20 or the client and me. Any communication between the 21 client and me or me and the client that was not in a 22 public forum -- 23 Q Okay. 24 A -- is privileged, and I will not produce 25 it, and I will not disclose it. KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

4 1 Q And when we say a public forum, what does 2 that mean? 3 A Well, if we were in an open board meeting, 4 then that's a public forum. Now, there are 5 documents that you've already been produced such as 6 meeting minutes that were at those meetings that I 7 didn't re-gather up. But to the extent I had 8 conversations or emails or letters to either the 9 manager or one or more of the board members that was 10 not public and it addressed anything that -- where 11 they're seeking my advice, that is privileged, and I 12 will not disclose it. 13 Q Not without a court order and a hearing, I 14 guess; is that what you're saying? 15 A Actually, even not without an order of the 16 Florida Supreme Court I won't. 17 Q Okay. You have a copy of something that 18 you just took a second ago. I wanted to mark them 19 in advance. 20 A Here's a copy of the December 19th letter, 21 and here's a copy of my time entry where I spoke to 22 your lawyer. 23 Q Back to the documents that you may have 24 that you say are subject to attorney/client 25 privilege, do any of them involve -- I mean, rather, KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

5 1 was my attorney copied on any of those? 2 A No, because then it wouldn't be a 3 confidential communication. 4 Q And so all communications that you've had 5 with my attorney, you've already submitted here 6 today? If you have something in writing rather? 7 A I have no written documents with your 8 attorney that I can recall. 9 Q Do you have any phone records that 10 memorialize when you talked to him? 11 A You're holding it. You just marked it. 12 Q Daniel Uhlfelder. Okay. We have three 13 documents that were marked. One is Plaintiff's 14 Exhibit Number 1, and that's a May 28th, 2008 15 letter. The other is Plaintiff's Exhibit Number 2. 16 That's a December 19th, 2008 letter. And the last 17 is Plaintiff's Exhibit Number 3, and that is a daily 18 timesheet for Gary A. Shipman. 19 A Right. 20 Q Okay. I guess we'll start from the 21 beginning the best that we can. There's a letter -- 22 A And there's also the green cards where we 23 sent them certified mail. 24 Q And I think those cards may match up to 25 the two cards at the end of Plaintiff's Exhibit KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

6 1 Number 1? 2 A Right. 3 Q June 3rd and June 3rd. 4 A Right. And I brought the declaration with 5 me, which you already have, but I have a copy if I 6 need to refer to it. 7 Q Okay. Let's try and do this by just 8 remembering if we can. Do you remember that May 28, 9 2008 meeting? 10 A Generally, yes. It wasn't a May 28, 2008 11 meeting. 12 Q Oh, right. I think it was May 23rd, 2008? 13 A It was sometime before I wrote the letter. 14 Q Do you remember seeing me at that meeting? 15 A To be honest, John, I don't. I remember 16 you at meetings after that. I don't remember 17 necessarily you being at that meeting. 18 Q When the WaterSound board would have these 19 kind of HOA meetings, would they usually do some 20 kind of a roll call to memorialize who was at the 21 meeting? 22 A It would have been documented in the 23 minutes in general. Although sometimes when people 24 come into the meeting that aren't on the board, they 25 may not necessarily get written down. KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

7 1 Q So how do I say this? The minutes of the 2 meetings, did they generally reflect who was at the 3 meeting? 4 A They generally reflect who was either at 5 the meeting for the board, the management company, 6 myself and anyone who presented something to the 7 board. 8 Q Those meetings, did they also have agendas 9 posted at some point prior to the meeting? 10 A To the best of my knowledge they all had 11 agendas. 12 Q Did you yourself help in creating those 13 agendas? 14 A No. 15 Q What kind of things would be on one of the 16 agendas for WaterSound's meetings, board meetings I 17 should say. 18 A Well, you would have a standard format 19 where it would call to order; is there a quorum; was 20 the meeting notice posted. Then you would have, 21 usually, a manager's report. Then there would be 22 old business, and it would depend on what got 23 discussed, and then there would be new business, and 24 sometimes there would be an executive session. 25 Q What's an executive session, please? KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

8 1 A Where I need to discuss with the board 2 some either pending litigation or threat of 3 litigation where we don't allow anybody else in the 4 room. It's attorney/client privilege and there's no 5 minutes taken. 6 Q How did you come to be -- well, I 7 shouldn't say that. I don't want to assume 8 anything. Were you the attorney for WaterSound 9 Beach HOA at that time? 10 A I was the general counsel of the HOA. 11 Q And how did you come to be the general 12 counsel of the HOA? 13 A I was interviewed by the board whenever 14 they decided they wanted to hire a general counsel, 15 and they hired me. 16 Q Was that when the homeowners were in 17 control of the HOA or St. Joe? 18 A As of May 28th, 2008, St. Joe still 19 controlled the homeowners association. I think what 20 happened, but I'm just speculating, there was a 21 point where it went from all St. Joe to having some 22 homeowner board members, but they didn't control the 23 board, and the homeowners wanted to have a lawyer 24 independent of St. Joe advising the board is my 25 belief. KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

9 1 Q Who was the attorney who was not 2 independent of St. Joe who advised the board? 3 A When I was there, no one. But I assume 4 before St. Joe had homeowners on the board, that 5 they had their in-house counsel provide them advice. 6 Q And who was that? 7 A I don't know. It was before I was there. 8 Q Oh, I got you. Do you know if there was a 9 time where the board had no counsel of any kind? 10 A It could have before I was there. I don't 11 know. 12 Q Do you know if Ken Borick was ever the 13 general counsel for WaterSound Beach? 14 A I doubt he was ever designated the general 15 counsel of Watersound Beach. Ken Borick is an 16 in-house counsel, or at least was, for St. Joe. So 17 was Kirby Williams. I assume that they probably 18 provided legal counsel to St. Joe, and St. Joe was 19 exclusively the board, but I don't know that for a 20 fact. 21 Q How would I find out as a previous 22 homeowner who was the general counsel before you 23 were? 24 A If they had a general counsel, I guess it 25 would be reflected -- I don't know. I mean, if KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

10 1 there's some reference in the minutes before then, 2 it would be in the minutes. It could have been St. 3 Joe just because St. Joe was in control as the 4 developer that they simply used their in-house 5 counsel, in which case you'd have to ask them. 6 Q Okay. Why did WaterSound Beach have 7 counsel? Why did they, I guess, appoint you as 8 their counsel? 9 A Most communities down here do have a 10 general counsel. I'm general counsel of nearly 100 11 associations down here. 12 Q You yourself or your firm? 13 A My firm. 14 Q I was going to say that's quite a bit. 15 What entities are you general counsel for down here? 16 A Well, the way the firm operates, anybody 17 that's a client of the firm, I would in essence be 18 their general counsel. We don't, because of the 19 nature of the practice, like I don't always attend 20 WaterSound meetings. Sometimes I have to send 21 somebody else. 22 Q Are there things that -- well, I shouldn't 23 say things. Are there tasks or acts that WaterSound 24 can't perform without counsel being there? 25 A They can't go into executive session KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

11 1 without me there. 2 Q Can WaterSound HOA post liens without 3 counsel? 4 A I believe under the statute, to file a 5 lien, it has to be done by a lawyer. 6 Q And that statute we're talking about, the 7 homeowner statutes 720 or 730 I guess it is? 8 A Right. 9 Q What other types of things do they need an 10 attorney to do? 11 A Well, since they're a corporation, if they 12 wanted to sue somebody, they would have to have a 13 lawyer. 14 Q Okay. 15 A If they want to defend a lawsuit, they 16 would have to have a lawyer. Things that the 17 statute would absolutely require a lawyer to do. I 18 guess that's the only thing that you absolutely have 19 to have a lawyer. 20 Q Is the board entitled to interpret the 21 governing documents without an attorney? 22 A I don't know what you mean by interpret, 23 but they are actually required to read them. 24 Q The board is? 25 A Yeah. You know, to the extent they would KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

12 1 have some question, I would assume they would ask 2 me. 3 Q What would you base that assumption on? 4 A That's what they pay me to do, advise 5 them. 6 Q So that the record is clear and we're all 7 understanding this, I think you said that you were 8 interviewed but that St. Joe was in control of the 9 board at that time. Who interviewed you for that 10 position? 11 A The two homeowner representatives. 12 Q And who would that be? 13 A Dale Putz was one. To be honest, I don't 14 remember who the other one was. It was quite a 15 while ago. 16 Q I wonder if it was Ron Romano. Do you 17 know him? Do you know if Ron Romano -- 18 A I know Ron. I don't think it was Ron, but 19 it might have been. If he was the first homeowner 20 representative with Dale, then that's who it was. 21 Q Okay. 22 A And I think there might have been other 23 firms at that time but, again, I wasn't there. 24 Q Do you remember being at meetings where 25 you were there representing the HOA and St. Joe also KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

13 1 had an attorney there representing the HOA? 2 A Well, in the early days, Ken Borick was 3 actually on the board. 4 Q Is Ken Borick an attorney? 5 A Yes. 6 Q And he was -- 7 A In-house St. Joe lawyer. 8 Q -- WaterSound board of director as well? 9 A Yes. 10 Q Okay. Well, let's try and recreate this 11 May 23rd meeting of 2008 the best we can. Do you 12 remember if someone brought a survey into that 13 meeting? 14 A Yes. 15 Q They did? 16 A Yes. 17 Q Do you know who it was? 18 A I think it was Mary Jolline (sic). The 19 way it came up is there was a presentation by a 20 representative of the DRB, and in that 21 presentation -- 22 Q Let's clear that up. What's a DRB? 23 A Design review board. 24 Q Okay. 25 A And in that presentation, it was discussed KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

14 1 the survey of your tower. 2 (WHEREUPON, the court reporter 3 asked for clarification of the 4 name Mary Jolline.) 5 A I think it was Mary Joule. To be honest, 6 I'm not 100 percent certain. 7 Q Yeah. I'll have you take a brief look at 8 this Page 2 of those minutes. There is something 9 circled, and that is -- 10 A Well, maybe it was Tracy Regan. 11 MR. CARROLL: For the record, Mr. Shipman 12 is looking at Plaintiff's Exhibit Number 2 -- 13 or Plaintiff's Exhibit 21 from the Joule 14 deposition. 15 A If the minutes say it was Tracy Regan, 16 then it was Tracy Regan. 17 Q Let's see. At that same meeting, can you 18 tell me who's in attendance at that meeting? 19 A Well, based on the minutes, it would 20 appear that four of the board members, Lisa Purul, 21 Bridget Precise, Dale Putz, David Lilienthal. 22 There's also from the management company Sandy 23 Matteson, Alex Fambri, Amy Norsworthy. Then from 24 the maintenance, it would be Terri Moore. I'm not 25 really sure who Amber Collins was. Mary Joule, KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

15 1 Tracy Regan and myself. And then it says there were 2 some homeowners in attendance. Jack and Joan 3 Luchese, Peggy Geppart and Ann Mosely. 4 Q Okay. Thank you. Do you know Ann Mosely? 5 A Yes. 6 Q Is she partners with David Lilienthal? 7 A She is today. I don't know if she was 8 back then. 9 Q We were talking about a few of the 10 individuals, and that Tracy Regan and Mary Joule, 11 who did they work for? Do you know? 12 A Best of my understanding at the time, they 13 worked for the DRB. 14 Q And is that the same DRB that functioned 15 at WaterColor? 16 A At that time St. Joe controlled both 17 boards, and St. Joe appointed and controlled the 18 DRB. So I guess -- I don't know. I don't know if 19 they worked for St. Joe DRB at that time or not. 20 Q Were you the general counsel for the 21 WaterColor board at that time? 22 A Yes, I was. 23 Q What about for WindMark Beach? 24 A No. 25 Q River Camp? KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

16 1 A We do some legal work River -- actually, 2 today we do some legal work for WindMark too, but 3 we're not general counsel. 4 Q Okay. 5 A Now, the DRB is separate from the board, 6 and generally they did not meet with the board so -- 7 and I was not general counsel to the DRB. DRB was 8 St. Joe controlled. 9 Q Okay. You were saying that generally they 10 did not meet with the board. Do you remember other 11 meetings where DRB was present at WaterSound board 12 meetings? 13 A I mean, I'm sure they were, but it wasn't 14 a regular thing. And generally, my memory was that 15 usually when the DRB came before the board, the 16 architect was there. 17 Q When you say the architect, who would that 18 be? 19 A I'm not sure who it was at that time. I 20 believe now it's Brian Stackable. It might have 21 been at that time. 22 Q But you're referring to the architect who 23 sits on the DRB? 24 A Right. 25 Q Now, let me see if I understand this KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

17 1 right. How is the DRB created? What gave them any 2 authority, I guess, in WaterSound Beach? 3 A Well, it's provided for under the 4 declaration. 5 Q Do you know if the design review board 6 charged a fee for reviewing plans? 7 A I wasn't their lawyer, but I imagine they 8 did. 9 Q Do you know if the -- 10 A And we're talking about 2008, right? 11 Q Yeah, 2008. Have you seen a lot of 12 changes in the DRB between 2008 and today? 13 A Well, today WaterSound board is now 14 controlled by the homeowners. And if you read the 15 declaration, I believe it's under Article 4, St. Joe 16 is entitled to control the DRB until such time as 17 they no longer own lots in the community. However, 18 since 2008, St. Joe has delegated to the board 19 approval authority for variances. So today, not in 20 2008, but today, whenever the DRB is considering an 21 application for a variance, it gets presented to the 22 board. 23 Q When we talk about St. Joe delegating that 24 authority, how would someone find out when that 25 occurred? KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

18 1 A I believe it would be reflected in the 2 minutes of the board. 3 Q Do you know if St. Joe made that 4 delegation in writing? 5 A Well, what the document that you're 6 referring to, Article 4, it requires that the 7 delegation be in writing. It doesn't mean that St. 8 Joe has to actually create the written document, but 9 there has to be a written document. So I believe in 10 the case of WaterSound today, it was announced at a 11 meeting and a set of minutes were created. 12 Q And that would be the written document 13 then? 14 A Right. 15 Q So a person could scan through those to 16 find out when the delegation -- 17 A Right. But that was not in 2008. 18 Q Okay. 19 A I can tell you that. It was not until 20 after control of the board was turned over to the 21 homeowners, which I believe was 2010. 22 Q I think you're right. Sometime around 23 October of 2010, I think. This is going to be my 24 next question, and that is, we talked about this 25 delegation of some control over the DRB functions, KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

19 1 but that was limited to variances; is that correct? 2 A As far as I can remember, yes, granting 3 and denying of variances. 4 Q Prior to that, how were variances granted 5 or denied? 6 A DRB did it. They still do it. It's just 7 they have to come to the board and tell them they're 8 going to -- well, the way it works now is if they're 9 going to deny a variance, the person who sought it 10 can come to the board and ask the board to consider 11 it and overturn the DRB. If the DRB is going to 12 grant a variance, they have to notice the board 13 they're going to do it and give the board an 14 opportunity to convince them not to. 15 Q Okay. I understand. And when we talk 16 about coming to the board, that's the board of 17 directors? 18 A Right. 19 Q We talked a lot about this covenants 20 committee? 21 A The covenants committee is something 22 different. 23 Q Okay. Got you. Let me just ask you, if a 24 variance is granted, does the DRB file something in 25 the public records or does the HOA file something in KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

20 1 the public records? 2 A Not in the public records, but there would 3 be something created in the file -- I assume the 4 construction file -- for that particular lot of the 5 DRB. 6 Q These construction files, where are they 7 maintained? 8 A I don't know. I'm not the DRB's lawyer. 9 Q Got you. Are you the lawyer for Tracy 10 Regan? 11 A No. 12 Q And what about Mary Joule? 13 A No. 14 Q Let me ask you again about Page 2 of that 15 May 2008 meeting. There's a section that's 16 highlighted on that exhibit that talks about the 17 tower being built next to the Yacht Pond. 18 A There's nothing on here that's 19 highlighted. Are you talking about where you 20 circled the paragraph? 21 Q Yeah. I think it's circled with a pen or 22 something. 23 A Okay. 24 Q If you could just read that and refresh 25 your memory, I was going to ask you about that. KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

21 1 A Okay. 2 Q In there it says that the contractor was a 3 few inches from being out, but until he actually 4 went over, there was nothing they could do. Was 5 that your opinion or someone else's? 6 A I had no opinion at the time of this 7 meeting. I didn't know anything about it until the 8 meeting. After the meeting, I was provided a copy 9 of a survey that showed that the height of the 10 tower, which is incomplete, was 48.53 inches. The 11 maximum height allowed by the county is 50 feet. So 12 it would have been approximately one and a half feet 13 below the maximum height, but it's an incomplete 14 tower. 15 Q When we talk about the county, is that the 16 building department that you're referencing, or what 17 is that? 18 A What do you mean when we talked about the 19 county? 20 Q You said the maximum height according to 21 the county is 50 feet. Is that -- 22 A County regulation and it's also 23 WaterSound's regulation. They adopted the same 24 height restriction, 50 feet. 25 Q Oh, they did? KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

22 1 A Yes. 2 Q How would somebody find that adoption? 3 Was that memorialized in writing, do you think? 4 A It would be -- I don't know whether they 5 call it their construction guidelines or their 6 construction code or their construction rules, but 7 that's what it would be in. 8 Q Okay. Somewhere it's written down? 9 A Right. But regardless, they could not 10 adopt a height restriction that was greater than the 11 county's. And the county's is in the building code, 12 or in the county ordinances addressing construction. 13 Not necessarily the building code is actually 14 statewide code, but they also have ordinances 15 addressing construction. 16 Q Did you tell Tracy Regan that ordinance -- 17 or did you interpret that regulation for the board 18 in some way? 19 A At that meeting? 20 Q Yes. 21 A No. 22 Q I see here it says, Gary Shipman advised 23 to have the building surveyor back out for another 24 report and to ask Billy Bearden for assistance. 25 What kind of assistance were you advising the board KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

23 1 to get from Billy Bearden? 2 A If they were concerned that it was 3 exceeding the maximum height limitation -- and I 4 didn't like those minutes either. They're not very 5 well written. What I recall advising them is if 6 they are concerned that the tower exceeds the height 7 limitation, Billy Bearden, who is head of the 8 building inspectors, needed to know. So he needed 9 to come out. At that time, I believe I didn't have 10 the actual survey. Afterwards, I requested it and 11 was given it. 12 Q When we started, we were talking about did 13 somebody bring that survey to the meeting. Do you 14 need to revise that answer? Do you know if somebody 15 did bring a survey to the meeting? 16 A I think she had it there, but to be 17 honest, John, I don't remember for sure. I know 18 that before I wrote a letter, I told them I wanted a 19 survey, and they gave me a copy of it. 20 Q What's that survey dated, if you don't 21 mind? 22 A May 16, 2008. 23 Q Is there a field date on there, too, 24 somewhere? I see you look at the bottom towards the 25 signature part. KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

24 1 A May 16, 2008. Up at the top. 2 Q So that was a week or two prior to that 3 meeting. The meeting was -- 4 A The meeting was seven days before. 5 Q Let's see. It's saying here that Gary 6 suggested that unless the contractor is granted a 7 variance, he would have to tear it down. What 8 variance are you talking about there? 9 A If you want to exceed 50 feet, you would 10 have to get both a variance from the county and a 11 variance from WaterSound. 12 Q I see here it says Gary would have the 13 board write a letter to the county opposing the 14 variance. Why did you oppose the granting of the 15 variance? 16 A Because they don't want a tower that 17 exceeds 50 feet in their community. 18 Q Did somebody tell you that at the meeting? 19 A That was part of the discussion. 20 Q Okay. It's saying here that David 21 Lilienthal asked Gary to write the letter, and it 22 says that you agreed. 23 A Yeah. I think whoever wrote those minutes 24 confused what letter is being discussed because the 25 letter I was asked to write was to you, which I did. KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

25 1 Q I see that letter. Did you have any 2 communications with the building department or Billy 3 Bearden? 4 A No. 5 Q Do you know if the board did, anybody on 6 the board? 7 A I doubt the board did, but I don't know 8 that. I haven't questioned everybody on the board 9 about it. But I seriously doubt anybody on the 10 board would have. The DRB might have. 11 Q You've seen a lot of these depositions, 12 and I guess you may have read some transcripts. 13 There's this recurring theme of the community was 14 concerned that the tower was going to be too tall. 15 Do you know who it was who spearheaded that effort 16 or who was talking about that tower possibly being 17 too tall? 18 A John, I don't know of any community 19 perception that the tower was too tall. That's what 20 you've discussed in these depositions. I'm not 21 aware of any of that. 22 Q It sounds like somebody was concerned 23 because they brought a survey to the board and said 24 that the building was going to be too tall and that 25 they didn't want any buildings over 50 feet. KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

26 1 A Well, you're not allowed to have a 2 building over 50 feet. 3 Q Do you know if there are any other 4 buildings in WaterSound over 50 feet? 5 A Not that I know of. 6 Q Did anybody share a written complaint that 7 I had talking about two towers that were over the 8 height regulation? Did anybody share that with you? 9 A You mean where you sent an email to 10 somebody complaining about towers? 11 Q Or noticing them. 12 A I've seen your email. 13 Q Did you recommend that the board take any 14 action on that email? 15 A I can't advise you on what I discussed 16 with my client outside of the board meeting. In an 17 open board meeting, I did not. 18 Q Okay. 19 A Anything else is privileged. 20 Q Do you know if the board or the DRB took 21 any action on those two buildings I talked about in 22 that letter? 23 A Well, you just asked me two different 24 questions. As far as the board taking formal 25 action, formal, meaning legal, I'm not aware of any. KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

27 1 The DRB, I don't know. I'm not their lawyer and so 2 I can't tell you. 3 Q Who told you that there's a county 4 ordinance that talks about a 50-foot height maximum? 5 A Who told me that? 6 Q Yeah. How did you come to believe that 7 that's true? 8 A Because there is. 9 Q And that's what I'm wondering, how did you 10 come to believe that's true. I'm sure you weren't 11 born with that understanding. At some point you 12 came to believe that was true. 13 A John, that's kind of like asking me how 14 did I know that there are certain requirements of an 15 HOA that are published in Chapter 720 of the Florida 16 statutes. I don't understand what you're trying to 17 ask me. Do I read things? Yes, I do. That's what 18 a lawyer does. 19 Q Well, I guess what I'm trying to figure 20 out is you've said now three different things about 21 this 50-foot height regulation. I think you said it 22 was a regulation. You talked about it maybe being a 23 building department issue and then you recanted and 24 said it was, I think, an ordinance, and I'm 25 wondering, did you know on this day, May of -- KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

28 1 A That you couldn't exceed 50 feet? Yes, I 2 did. 3 Q Did you know how to calculate 50 feet at 4 that time? 5 A John, I don't know how to do it today. 6 I'm not a surveyor. That's why you hire surveyors. 7 Q That's pretty fair. I just wonder if 8 you've ever read the height ordinance in Walton 9 County? 10 A Have I read it? Yes. 11 Q The 50-foot height ordinance? 12 A Yes. 13 Q Does it say in there how to calculate 14 50 feet? 15 A I don't remember, John. If it does, I 16 wouldn't be the one who does it. 17 Q Okay. Well, it's saying here, Gary 18 suggested that unless the contractor is granted a 19 variance, he would have to tear it down. Do you 20 think that that's true today? 21 A If you exceeded 50 feet? 22 Q Yes. 23 A Yes. 24 Q And but you don't know how to calculate 25 the 50 feet. KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

29 1 A I would tell them to go hire a surveyor to 2 calculate it. I think I actually in the minutes 3 said they ought to have the surveyor back out there. 4 Q It says that here. It says Gary Shipman 5 advised to have the building surveyor back out for 6 another report. Why did you advise that? 7 A Because if we were going to tell you to 8 tear it down, I would want to make sure. 9 Q Do you think that the survey that you have 10 there was the second report or the first one? 11 A I think this one is the first one. 12 Q Okay. That sounds in opposite to what you 13 just testified to me saying if you're going to tell 14 me to tear it down, you would want to have another 15 survey. But I think you're saying that you just 16 scrapped that idea. 17 A No, I didn't tell you to tear it down. I 18 never filed a lawsuit against you seeking an 19 injunction to order you to tear it down. In fact, I 20 believe I even told them at that meeting that until 21 you completed your tower and it actually went over 22 50 feet, we couldn't make you tear it down. And in 23 fact, the day after I sent you -- you received this 24 letter, I spoke to your lawyer where your lawyer 25 told me that you had a survey that showed that our KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

30 1 survey was wrong. And my very words to Danny 2 Uhlfelder were, if your client doesn't exceed 3 50 feet, then he's not going to have a problem. But 4 if he does, be advised we will seek an injunction 5 ordering him to tear it down. 6 Q Fifty feet from where? Is it above sea 7 level? 8 A John, it's 50 feet in compliance with the 9 county's ordinance and with the association's 10 requirements that the tower not exceed 50 feet. I 11 don't do the measurements. Surveyors do. You know 12 that. That's why you had a survey and Danny 13 Uhlfelder referenced to me your survey. And before 14 I allowed the homeowner's association do anything 15 further, there was another survey done, and that 16 survey showed a discrepancy showing the present 17 height was lower. And you came to a meeting, after 18 I told Danny you didn't have to worry about it if 19 you didn't exceed 50 feet, and I told you, you need 20 to complete your tower, and you need to make sure 21 it's under 50 feet. But until it's completed, I 22 have no way of knowing whether you're going to 23 comply or not. That's your responsibility as a 24 builder. 25 Q As a builder or a homeowner? KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

31 1 A Well, you were both in that case. 2 Q What's your opinion on it? Is it as a 3 builder or a homeowner? 4 A It's really both because under the 5 documents, if you read them, any violation by a 6 builder is construed to the owner. In your case, it 7 was both, so you would be responsible both ways, as 8 both the owner and the builder. 9 Q Okay. Was John Carroll the builder or 10 Chambers Street Builders? Do you know? 11 A I don't know, John. You switched around 12 the ownership of the thing several times. 13 Q You're right. Okay. You were talking 14 about Daniel Uhlfelder and that you had a 15 conversation with him, and we're looking at 16 Plaintiff's Exhibit 3. It's a daily timesheet for 17 Mr. Shipman. It's dated June 4th. Is that when you 18 said you talked to Danny Uhlfelder? 19 A Yes. 20 Q Why did you call my attorney? 21 A I didn't. He called me. 22 Q Did he say that he was my attorney? 23 A Yes. 24 Q And what was the substance of his call? 25 Why did he call you? KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

32 1 A Because he had the letter that I had 2 written you. 3 Q The May 28th letter? 4 A Yes. 5 Q That letter, if you want to review it 6 yourself, you can, but it's saying in Paragraph 2, 7 your current construction at Lot 24, WaterSound 8 Beach, Phase IV, Walton County, is in violation of 9 the WaterSound Beach community construction 10 guidelines, specifically Page 25 of the WaterSound 11 Beach Patterns for Placemaking 2002. Do you think 12 that, that regulation that we're talking about, 13 50 feet, is that Page 25 of the Patterns for 14 Placemaking 2002 booklet? 15 A I assume it is, but I haven't looked at it 16 in a long time, so I don't know. 17 Q Where did you get that information? 18 A I'm sure I got it from either Tracy Regan 19 or Mary Joule. 20 Q Do you think that Sandra Matteson might 21 have helped you with that information? 22 A She may have. I don't know. 23 Q It also goes on to say, in addition, your 24 current structure is in violation of county height 25 ordinances along 30A. Is there a height ordinance KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

33 1 along 30A? 2 A Yes, 50 feet. 3 Q And is it only along 30A? 4 A I know it specifically applies to 30A. 5 Whether it applies to other areas of the county, I 6 don't remember. 7 Q How would I find out if it does apply to 8 Highway 30A? That's the beach front road, right? 9 How would somebody look to see if the ordinance 10 applies to Highway 30A? 11 A Go look it up and read it. 12 Q In the Walton County ordinances? 13 A Right, or Walton County codes. 14 Q It says we have reviewed the Voelker's 15 survey, a copy of which is attached for your review. 16 It indicates that the present unfinished tower 17 without the roof is 48.53 feet. Who's the we that 18 you talk about in there? 19 A I assume the we is the board. 20 Q Is that the design review board or the 21 board of directors? 22 A Both. 23 Q Was Tracy Regan a design review board 24 member? 25 A I don't think she was on the board. I KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

34 1 think she worked for them. 2 Q What about Mary Joule, was she a design 3 review board member? 4 A Again, I don't remember whether she was 5 actually on the board or whether she worked for them 6 at the time. 7 Q Okay. It says here -- 8 A And I guess the we would also include me 9 because I read the survey. 10 Q Got you. So based on that survey that you 11 have that says 48.53, was my construction in 12 violation? It says in addition, your current 13 structure is in violation of county height 14 ordinances. Was it in violation of the county 15 ordinance? 16 A I believe the way I explained it cause I 17 say in here, if you read the next sentence, I say, 18 no structure may exceed 50 feet in total height. 19 This leaves one and a half feet for the roof 20 structure, which is not practical nor would it meet 21 the design criteria. Based on the plans that you 22 had submitted at that time, and you can see from the 23 picture, you don't have a roof on it yet. 24 Q That's right. You're looking at the 25 survey. KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

35 1 A And the plans that you had submitted that 2 were approved, the way the roof structure was 3 designed, you couldn't possibly do it in one and a 4 half feet, and that's what I say in the letter. If 5 you read the minutes and you read what I'm saying 6 here, technically, until you complete it and it goes 7 over 50 feet, it's not in violation. Although, if 8 you complete it and something is different than the 9 plans that you had approved, it would be in 10 violation. So this letter was intended to tell you, 11 you can't go over 50 feet period. 12 Q It is talking about without the roof 13 design as submitted and approved by the design 14 review board. 15 A Right. 16 Q The plans that were submitted for Lot 24 17 to the design review board, do you know what that 18 top plate height was? Do you think it was 19 48.53 feet? I mean, that's what we're seeing there 20 is the building just the top plate. Do you know 21 what was the top plate height? 22 A All I know is that the survey that we had 23 without a roof was 48.53 inches, and that the angle 24 that was required on your roof based on the plans 25 that were approved were taller than one and a half KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

36 1 feet. 2 Q Well, that's what I was getting at. Have 3 you framed a roof before? 4 A Have I framed a roof? 5 Q Yeah. Have you framed a roof yourself? 6 A No, I have not framed a roof. What 7 possible difference would that make? 8 Q I'm wondering, the plans that were 9 approved, were there structural drawings in those 10 plans? Do you know? 11 A You mean for the roof? 12 Q For Lot 24 plans? 13 A Did you have to submit a complete set of 14 plans, including the structural components of the 15 plans? Yes. 16 Q And who reviewed those to see what the top 17 plate height was? 18 A In your plans? 19 Q Yes. 20 A I'm sure it would have been the architect 21 on the DRB. 22 Q Did the architect and the DRB tell you 23 that, that top plate 48.53 exceeded the height on 24 the plans? 25 A What I got told was that 48.53 feet KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

37 1 without a roof, if you built a roof structure that 2 was approved, the roof structure required more than 3 one and a half feet, and you would exceed 50 feet. 4 Q Who told you that? 5 A Whoever I got the information from, 6 whether it was Tracy Regan or Mary Joule. I don't 7 remember. 8 Q Was it somebody at that meeting? 9 A It would have been after the meeting. 10 Q Would that be an executive session? 11 A No. When they asked me to write the 12 letter, I requested the survey, and then I requested 13 information on if you completed the tower, cause 14 it's obviously not complete, how high would it be if 15 you had built the plans, and I was told it would 16 exceed one and a half feet. 17 Q Did you yourself review those plans? 18 A No. I'm not an architect. 19 Q I appreciate that. Well, there we have 20 it. This is my main problem I keep getting back to, 21 and I really need to get an answer. And it's 22 saying, without the roof design I submitted and 23 approved by the design review board, it's 24 48.53 feet. 25 A Right. KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

38 1 Q Is it your opinion, or was it your opinion 2 at that time, that my structural drawing did not say 3 I should build it 48.53 feet to the top plate? 4 A I think if you read my letter, John, and 5 you read my next sentence, please be advised you 6 must lower the tower structure so that it complies 7 with the approved roof design and does not exceed 8 50 feet. And as I talked to your lawyer the very 9 next day after you got this letter and Danny and I 10 discussed it and Danny assured me that your tower 11 could be completed per the plans and it not exceed 12 50 feet, and I told Danny -- as I later told you in 13 a meeting -- that as long as it didn't exceed 14 50 feet and it complied with the plans that had been 15 approved, then you didn't have a problem. But until 16 the tower was completed, there's no way for me to 17 know whether or not it meets the 50 feet. 18 Q That survey that's attached to that 19 letter, it was dated -- the letter is dated May 28, 20 but I think the survey is dated May 16th. How was I 21 as the owner or the builder to determine exactly 22 what the board wanted to do? 23 A The board wanted you to not exceed 50 feet 24 on your tower. 25 Q And when you say not exceed 50 feet, KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

39 1 50 feet from where? 2 A Fifty feet in accordance with the county 3 ordinance. 4 Q Is that ordinance number in your letter 5 anywhere? 6 A No. But Danny, your lawyer, knew what I 7 was talking about because we discussed it. In fact, 8 Danny discussed with me that he had talked to you 9 and that you had insisted that the surveyor measured 10 the base of the tower from the wrong point. 11 Q He did? 12 A Yes, he did. And that's when I told him, 13 if you don't exceed 50 feet, you don't have a 14 problem. But if you do, be advised, we will seek an 15 injunction and make you tear it down. 16 Q Well, that was on June 4th, 2008. When 17 did you tell the board that, about your discussion 18 with my attorney? 19 A The full board or when did I have a 20 communication? 21 Q Well, I see a letter dated December 19th, 22 2008. Did you tell anybody at the full board prior 23 to this? 24 A Yeah. There were at least two board 25 meetings where you were in attendance, John. KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

40 1 Q When were those? 2 A I don't remember the dates, but they would 3 have been in between this letter and that letter. 4 The next board meeting, I believe you were there. I 5 believe by that point in time, we had a new survey. 6 I right away told -- I believe it was Sandy 7 Matteson, who is the board manager, who was my 8 contact -- that we needed to get a new survey, and 9 we did. And at the next board meeting, you showed 10 up wanting a new letter saying that your tower was 11 in compliance. In fact, you did that at least two 12 board meetings, and I told you both times, there's 13 no way for us to say your tower complies until you 14 complete the tower. 15 Q Do you know if in the covenants and 16 restrictions for WaterSound if an owner can request 17 such a letter, whether or not construction is in 18 compliance or not? 19 A Yes, you can, but you have to complete the 20 portion that you're seeking a letter of compliance 21 on. 22 Q Well, this is what I'm seeing here. It 23 says, please be advised that you must lower the 24 tower structure so it complies with the approved 25 roof design. Apparently, you're saying, your KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

41 1 current construction is in violation. 2 A And then I talked to your lawyer and we 3 got a new survey, and my understanding is -- I've 4 seen the email. Mary Joule sent you an email saying 5 here's the new survey, and if you complete your 6 tower in conformance with what has been approved, 7 then it will meet the 50-foot requirement. Now, 8 when you came to the board and you wanted a letter 9 saying that your tower was in compliance, I 10 repeatedly told you in at least two meetings that 11 until you completed the tower, we couldn't do that 12 because you hadn't completed it, and we didn't know 13 until you completed it that you were complying with 14 the approved plans. And under the declaration that 15 you're talking about where you can seek a letter 16 advising you that your construction is compliant, 17 you have to complete whatever the portion is of the 18 construction that you're wanting a letter telling 19 you it's compliant on. 20 Q Right. Well, there you go. I mean, are 21 you not understanding that I'm saying your letter 22 says, your current construction is in violation, and 23 I'm asking you to tell me whether or not my current 24 construction was in violation or not. Apparently 25 the board writes me a letter certified saying your KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

42 1 current construction is in violation, and I'm asking 2 for the board to write me a letter saying is my 3 current construction in violations or not? You've 4 already said it is. 5 A And you got an email from Mary Joule after 6 the second survey telling you that if you completed 7 your tower in accordance with the approved plans 8 that it would comply. And I told your lawyer when 9 he called me and said you disputed the survey, that 10 it wasn't done correctly, Danny and I specifically 11 had a discussion where I said, Danny, if he doesn't 12 go over 50 feet, then he's not going to have a 13 problem. In fact, you sent out an email to probably 14 everybody and their brother in WaterSound saying we 15 have now reversed our position. 16 Q How do you know that's true? 17 A Because you copied me on the email and I 18 read it. 19 Q Do you have that email? 20 A No. 21 Q Where is it now? Apparently you're 22 telling me that you read it? 23 A Probably out in cyberspace somewhere. 24 Q I don't know the email you're talking 25 about, but I do remember something that was a KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

43 1 discussion that was held on the WaterSound 2 homeowner's chat board. Do you think that's the 3 email that you're talking about? 4 A You wrote it, John. 5 Q And you read it because I sent it to you; 6 is that right? I mean, that's what you're saying. 7 I've got to object otherwise -- 8 A I got a copy of it. I mean, it was on my 9 email. I got a lot of your emails. After awhile I 10 got to the point where I just deleted them. 11 Q Did you read them? 12 A Not all of them, no. 13 Q I bet. Why not? 14 A I have better things to do with my time. 15 Q Was I a homeowner at the time? 16 A You were at least a lot owner. 17 Q That's true. Good point. 18 (WHEREUPON, a short break was 19 taken.) 20 BY MR. CARROLL: 21 Q I guess I want to sum this up because we 22 talked so much about so many different things. You 23 were saying that -- correct me if I'm wrong -- 24 you're not Tracy Regan's attorney; you're not Mary 25 Joule's attorney. Were you the attorney for the KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

44 1 DRB? 2 A No, I've already told you that four or 3 five times. 4 Q Okay. Got you. Would the letter that 5 you're referring to -- I think you said that Mary 6 Joule sent me an email talking about the height 7 violation or something, that they had a new survey. 8 Would that have been a letter from St. Joe to me? 9 A I think it would have been a letter from 10 the DRB to you. 11 Q Okay. 12 MR. GEORGE: I think you're actually 13 referring to the Tracy Regan email. Remember 14 she sent you an email mid June saying we have a 15 revised survey. Based on that, we don't think 16 you're going to exceed 50 feet? 17 MR. SHIPMAN: I confuse the two of them -- 18 MR. GEORGE: I think you're talking about 19 Mary Joule. I've got that email in my trial 20 exhibits in my car if you want me to go get it. 21 MR. CARROLL: It might even be in these 22 exhibits, but maybe not. 23 MR. GEORGE: You want me to go grab my 24 trial exhibits out of the car cause it's one of 25 mine? KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

45 1 MR. CARROLL: It is? 2 MR. GEORGE: And they're in a binder in 3 the trunk of my car. 4 MR. CARROLL: Yeah, okay. Thanks a lot. 5 Is it already marked as a trial exhibit? 6 MR. GEORGE: Well, it's in my binder. 7 We're going to put together a complete set of 8 trial exhibits. 9 (WHEREUPON, a short break was 10 taken.) 11 A So that I can correct this, I've been 12 using the name Mary Joule on this email. Apparently 13 it's Tracy Regan. She copied Mary Joule. So it's 14 an email dated June 17th, 2008. And then said, so 15 there's no misunderstanding, when Mr. Carroll has 16 repeatedly asked about, you can ask for a 17 certificate of architectural compliance. That 18 refers to Section 4.7 of the declaration. And what 19 it provides for is an owner may request in writing 20 that the reviewer issue a certificate of 21 architectural compliance certifying there are no 22 known violations of this article in the design 23 guidelines, and the reviewer is defined as the DRB 24 or the developer. This would not be the board of 25 directors. KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

46 1 Q Thank you. The letter that we were just 2 talking about from Tracy Regan, I'm marking it as 3 Plaintiff's Exhibit 4 to this deposition so it's 4 clear. And I'm reading it, yeah, it says based on 5 revised survey completed by Voelker's Surveying for 6 Lot 24, we believe that the height of the tower can 7 be maintained at 50 feet or less when the roof is 8 completed. Did the board of directors write me this 9 letter? 10 A No. And under the declaration, the board 11 of directors wouldn't be the one that would write it 12 to you. 13 Q Under the declaration, would it be the 14 board of directors who was to write Plaintiff's 15 Exhibit 1 to me, or would that be the DRB? 16 A It could be either one. If you read 17 Section 4.8 under enforcement, it provides 18 enforcement powers to both the declarant, which 19 would be St. Joe, the association and the DRB. 20 Q When it talks about enforcement, 21 enforcement of what? 22 A Any construction, alteration or other work 23 done in violation of the article or the design 24 guidelines. 25 Q Okay. KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

47 1 MR. CARROLL: Do you have Voelker's 2 revised survey? Can I please have it? If not, 3 I'll have to look through my things here. 4 MR. GEORGE: You can get a copy made. I 5 don't have an extra one in here. Do you want 6 to mark it or do you just want to ask him a 7 question about it? 8 MR. CARROLL: I'd like to mark it. 9 MR. SHIPMAN: You want to just let me look 10 at it and mark it later after this is over? 11 MR. CARROLL: Okay. We're going to call 12 that when it's ready Plaintiff's Exhibit 5. 13 BY MR. CARROLL: 14 Q Is that the revised survey that Ronald 15 Voelker prepared for the board of directors? 16 A Well, I assume it's the revised survey. 17 I'm not attesting as to the originality, but I 18 assume that this was what was produced by 19 Mr. Voelker. And whether or not it was ordered by 20 the DRB or the board of directors, I'm not sure. I 21 assume it was ordered by the DRB. 22 Q Okay. Got you. Does the revised survey 23 indicate that the tower as constructed was in 24 violation of the county height ordinance? 25 A Are you talking about the one dated -- I KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

48 1 can't read the date on this. 2 Q There's kind of a thin note that says -- 3 MR. GEORGE: Yeah, here's a better copy. 4 This is part of another one of our trial 5 exhibits. 6 A No, this isn't it. This is the May 16th 7 one. 8 Q I think you put a little asterisk. 9 A Oh, I see. Revised, June 9th, 2008. 10 Okay. So what was the question? 11 Q Does that survey, that revised survey, 12 indicate that the tower is in violation of the 13 county height ordinance? 14 A As of June 8th, 2008? 15 Q Yes. 16 A No. 17 Q And does the survey from Plaintiff's 18 Exhibit 1 indicate that the tower is in violation of 19 the county height ordinance? 20 A So now we're talking about May 16, 2008? 21 Q Yes. 22 A The survey alone? 23 Q Yes. 24 A It doesn't show it as exceeding 50 feet. 25 It shows it at 48.53 feet, but it's an incomplete KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

49 1 tower. 2 Q Was that tower as presently built there on 3 May 16th, 2008 in violation of the county height 4 ordinance? 5 MR. GEORGE: Object to form. 6 A As of May 16, 2008 in its incomplete 7 condition, as I also stated in my letter, it had not 8 exceeded 50 feet and therefore wasn't in violation. 9 However, it was incomplete. It had to be completed. 10 Q Knowing everything you know today about 11 the county height ordinance, would that -- could 12 that tower have been built, even if it were 13 48.53 feet, could it have been built in compliance 14 with the plans and still not exceeded the county 15 height ordinance? I'll put it in simpler terms. If 16 I put the roof on as was designed and approved by 17 the DRB on top of the 48.53 plate height, would the 18 building have violated the county height ordinance? 19 A Based on what I understand your approved 20 plan showed for your roof line, the height of the 21 roof was more than 1.47 inches. 22 MR. GEORGE: You mean feet. 23 A Or feet. Excuse me. But I'm not an 24 architect. I don't know. 25 Q That's good. When Tracy Regan wrote this KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

50 1 letter on June 17th, I guess she's saying, based on 2 the revised survey completed by Voelker's Surveying, 3 we believe that the height of the tower can be 4 maintained at 50 feet or less. Was she speaking for 5 the board of directors? 6 A I believe she's speaking for the DRB. 7 Q Okay. 8 A Or St. Joe or both. 9 Q You were saying -- I see Sandy Matteson is 10 copied and Mary Joule is copied. Do you see anybody 11 else who was copied on this transmission? 12 A The document speaks for itself so. 13 Q Okay. 14 A It only shows a cc to Sandy and Mary 15 Joule. 16 Q What was Sandra Matteson's position at 17 WaterSound at the time? 18 A Sandy was vice president of CCM for this 19 region. CCM managed WaterSound. The actual manager 20 was Alex -- I think her last name was Fambri, 21 F-A-M-B-R-I, I believe. So she would have been the 22 manager's boss in the management company. 23 Q Okay. Got you. Does Florida statute talk 24 about managers, for instance, does it say that an 25 HOA must have a manager? KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

51 1 A An HOA does not have to employ a manager, 2 but if they do, they need to employ a CAM. 3 Q And a CAM is the -- 4 A Community Association Manager. It's a 5 license. 6 Q Okay. We were talking a minute ago about 7 a letter that you said -- or email that I sent to 8 everybody saying something about a retraction. What 9 was that? You made reference to something, but you 10 don't have that email. 11 A Right after I spoke to Danny Uhlfelder, 12 you sent something out to the community talking 13 about that now your tower was in compliance and that 14 we had changed our opinion or position or something. 15 It was a very long rambling email to be honest. I 16 briefly read it and deleted it. 17 Q Okay. 18 A Like I did most of your emails. 19 Q Did you talk to Daniel Uhlfelder after I 20 wrote that letter and tell him that the board did 21 not retract their -- did not give a complete 22 retraction? 23 A No. 24 Q Did you only talk to Daniel Uhlfelder one 25 time about this tower? KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

52 1 A Formally, yes. 2 Q And the formal one is memorialized by this 3 June 4th timesheet? 4 A Yes. 5 Q What about informally? 6 A I ran into him in the hallway in the 7 courthouse one day. 8 Q Was it around this period of time? 9 A I think it was later, but he no longer 10 represented you at that time. 11 Q Okay. Got you. Did you pass on any 12 opinion to him either way at that time about whether 13 or not the building was in compliance or not? 14 A To the best of my memory, I think I asked 15 him if he still represented you. I told him that 16 you still hadn't completed your tower. Did he know 17 what was going on with you as to why you weren't 18 finishing your tower, and he told me that he didn't 19 represent you and didn't know. 20 Q The conversation that you had on June 4th, 21 2008 is not rectifying with what Mr. Uhlfelder told 22 me, and I'm just going to tell you or ask you a 23 question about this. I remember writing a letter 24 and sending it out to all the homeowners in 25 WaterSound saying that Sandra Matteson had made a KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

53 1 complete retraction. And I remember Daniel 2 Uhlfelder calling me the next day and say, I just 3 got off the phone with Gary. You put words in his 4 mouth. The board did not make a complete 5 retraction. They told you that until your tower was 6 complete, they weren't going to say one way or the 7 other. 8 A Maybe I called him a second time. I don't 9 recall. When I looked through my timesheets, if I 10 did, I didn't bill for it. 11 Q Do you remember Sandra Matteson making a 12 complete retraction? 13 A No. 14 Q Do you remember talking to Daniel at all 15 and telling him that? 16 A That Sandra Matteson made a complete 17 retraction? 18 Q That Sandra Matteson did not make a 19 complete retraction and that for me to send out a 20 letter to the homeowners saying she had was wrong? 21 A If I had such a conversation with Daniel, 22 I would have told him that I read your email and it 23 was incorrect. And your email was basically 24 something to the effect that your tower was in 25 compliance and -- KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

54 1 Q I remember that. 2 A -- and you hadn't completed it. As I told 3 you in repeated meetings, until you completed the 4 tower, there was no way for us to tell that your 5 tower was in compliance because it was incomplete. 6 Q And that's what I'm seeing in this 7 December 19th letter. We're calling it Plaintiff's 8 2. 9 A Which was perplexing because now we're in 10 December, and you still have done nothing on your 11 tower. 12 Q There was a meeting that we talked about 13 in depositions that was in November of 2008 between 14 myself and Sandra Matteson, Alex Fambri and Jack 15 Luchese and Tracy Regan. That meeting, we were 16 supposed to discuss how to move forward on Lot 24. 17 At the end of that meeting, Sandra Matteson said she 18 wrote you a letter saying -- she told us she would 19 get a letter from you, the board's attorney, saying 20 that the tower was not in violation. Do you 21 remember anything about that? 22 A I remember whatever meeting occurred 23 before this December meeting where we discussed what 24 we could write you, and once again, as we had in 25 several other meetings, I advised that until you KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

55 1 completed your tower, we could not write you a 2 letter that said your tower was in compliance. 3 Q And like you said, you were perplexed 4 because here it was December 19th and your letter 5 says, your roof structure had not been -- and at the 6 point of this letter -- has still not been placed on 7 the tower. Do you know if the roof structure was on 8 the tower 10 days later? 9 A I have no idea. 10 Q Do you know when the roof structure got 11 put on the tower? 12 A No. 13 Q Do you know if the roof structure is on 14 the tower now? 15 A To be honest, John, I think it is, but I 16 haven't examined your house. 17 Q Did you receive, as the board's attorney, 18 a survey which depicted the height of the finished 19 tower at any point? 20 A Unless the board wanted me to act on 21 something, there would be no reason for them to give 22 it to me. 23 Q I think we were saying I made a request 24 for architectural compliance, and I think your 25 response was, until your tower is complete, we can't KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

56 1 give you that letter. Yeah, that's interesting. 2 Did you ever as the board's attorney write a letter 3 saying your tower is in compliance with the height 4 ordinance? 5 A As the board's lawyer as opposed to the 6 DRB's lawyer, which I'm not? 7 Q You never were the DRB's attorney? 8 A No. 9 Q Okay. 10 A Unless the board specifically requested 11 that I do so, I would not, because that's the DRB's 12 job. 13 Q Okay. 14 A The only reason I wrote that letter is 15 because you had been at several meetings where you 16 repeatedly -- and it was like a broken record -- you 17 would talk about wanting us to tell you that your 18 tower was in compliance, and you were repeatedly 19 told, until you put the roof on, there's no way to 20 know. 21 Q Well, that's my point. I think at some 22 point the other parties all said, yeah, we observe 23 John building over there, and we know that the tower 24 is built. He's got his shingles on the roof. Do 25 you know of anybody who wrote me a letter after the KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

57 1 tower roof was on that said your tower is in 2 compliance with the height ordinance? 3 A After the tower roof was on, did you ever 4 come to the board and ask them to write you that 5 letter? 6 Q Or ask them again? 7 A Well, you never asked when the roof was 8 on. Did you ever come and ask after you put the 9 roof on? 10 Q I did. I actually sent this certified 11 letter asking for a complete retraction and told 12 y'all that I was going to sue for liable if I didn't 13 get it. 14 A And you deem that as a request under 15 Section 4.8 of the declaration as a advisory letter 16 as to whether or not you're complying with the 17 building requirements? 18 Q Yes. 19 A Well, that isn't how I would interpret 20 that. 21 MR. CARROLL: Well, that's all I have for 22 Gary. Thanks a lot, Gary. 23 MR. GEORGE: I don't have anything. 24 (Deposition completed.) 25 KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

58 1 CERTIFICATE OF OATH 2 A STATE OF FLORIDA 3 COUNTY OF OKALOOSA 4 I, the undersigned authority, 5 certify that GARY A. SHIPMAN personally appeared 6 before me and was duly sworn. 7 8 WITNESS my hand and official 9 seal this 23rd day of August, 2011. 10 11 _____________________________ KATHRYN B. PEACOCK 12 Notary Public, State of Florida 13 14 15 16 17 18 19 20 21 22 23 24 25 KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

59 1 REPORTER'S DEPOSITION CERTIFICATE 2 3 STATE OF FLORIDA 4 COUNTY OF OKALOOSA 5 6 I, Kathryn B. Peacock, Freelance 7 Court Reporter, certify that I was authorized to and 8 did stenographically report the foregoing 9 deposition; that a review of the transcript was not 10 requested; and that the transcript is a true record 11 of the testimony given by the witness. 12 13 I further certify that I am not 14 a relative, employee, attorney, or counsel of any of 15 the parties, nor am I a relative or employee of any 16 of the parties' attorney or counsel connected with 17 the action, nor am I financially interested in this 18 action. 19 20 21 KATHRYN B. PEACOCK Freelance Court Reporter 22 23 24 25 KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864

60 1 SIGNATURE PAGE 2 I, GARY SHIPMAN, do hereby certify that I have read the preceding pages and that they are 3 correct with the following exceptions: 4 PAGE LINE CHANGE/REVISION 5 6 7 8 9 10 11 12 13 14 15 16 17 ___________________ GARY SHIPMAN, 18 STATE OF FLORIDA COUNTY OF OKALOOSA 19 20 Subscribed and sworn before me this ____ day of ________________, 2011, by GARY SHIPMAN, who 21 has shown me the following identification or is personally known to me. 22 ____________________ NOTARY PUBLIC 23 24 25 KATHRYN B. PEACOCK, COURT REPORTER (850) 897-2864